GOVINDASWAMY PILLAI Vs. MARUDAN

JUDGEMENT

(1.) THE defendant is the appellant.

(2.) THE suit O.S. No. 448 of 1981 was filed by the respondent/plaintiff before the District Munsif of Valangiman at Kumbakonam, for a permanent injunction against the appellant herein on the following averments: He was a tenant cultivating in the suit properties. He had executed a written agreement of tenancy with one Subramania Pillai and after Subramania Pillai, he continued as a tenant under the appellant. THE appellant filed O.S. No. 222 of 1966 before the District Munsif of Valangiman at Kumbakonam, for recovery of possession against Subramania Pillai and the respondent herein. THE respondent remained ex parte in the suit. THE appellant herein accepted that the respondent was a tenant of the suit properties, but obtained a decree in the suit for recovery of possession, executed the decree and some how managed to record delivery and the execution petition was closed. THE delivery was only symbolical and the respondent's possession was not disturbed. While so, the appellant attempted to interfere with his possession and enjoyment on 19.9.1981. THE suit was therefore filed for permanent injunction.

(3.) MRS. Jayashree Narasimhan, the learned counsel for the appellant vehemently contended that it was not open to the Courts below to have held that the delivery taken by the appellant pursuant to the decree in O.S. No. 222 of 1966 was only a paper delivery in spite of the fact that the record indicated actual delivery. The learned counsel further submitted that the decree in O.S. No. 222 of 1966 would operate as res judicata and it was not open to the respondent to contend that he was not bound by the decree directing him to deliver possession of the property. According to the learned counsel, there was no warrant for finding that the respondent had lawful possession of the property when, on facts and in law, he was only a trespasser.